Thursday, February 21, 2013

Frank Navarijo was still recovering from a surgery that removed his cancerous prostate when he was accused of raping his daughter in 1998. At trial, Navarijo, a 23-year SAPD veteran and a former Department of Justice contractor, embarrassingly admitted he was incontinent, sometimes forced to wear adult diapers, and impotent during the period he was accused of assaulting his daughter.

The girl's maternal grandmother, Paula Garza, first came forward with the allegations, claiming the 5 year old made the outcry during a visit one night. The girl's account, however, bounced back and forth. The day after the supposed outcry, she told her mother the abuse never happened. She later divulged to a Child Protective Services caseworker, “grandma told a lie

grandma told me to say that,” records show.

But by the time she took the stand, the daughter gave a troubling, scattered account of how her father raped her, sometimes with a “pico,” or, as she put it at trial, “a little sharp knife.” Then last November, some 13 years after Navarijo was handed his 20-year prison sentence, the girl testified that her grandmother hated her father and forced her fabricate the story. Based on her testimony, a San Antonio judge has asked that Navarijo, 74, be freed and his conviction overturned.

In her recommendation to the state Court of Criminal Appeals last week, District Judge Maria Teresa Herr writes that there's “clear and convincing evidence that no rational jury would convict” Navarijo in light of his daughter's recent recantation. In court, and in an affidavit she signed in 2011, Navarijo's daughter, now a 20-year-old college student, explained she was too afraid to disobey her grandmother, saying her grandmother often beat her with a belt for punishment. The girl also says she recanted to a counselor when she was 11 years old.

“Really, the only issue before the judge, and ultimately the Court of Criminal Appeals, is the credibility of that girl,” Rico Valdez, head of the Bexar County DA's appellate division, told the Current. Typically in such cases the state will submit to the judge its own recommendation, or “findings of fact and conclusions of law,” often arguing against overturning a conviction. The Bexar County DA's office didn't file one in Navarijo's case.

“Either you believe her (the victim) then or you believe her now,” Valdez said, “That's basically where we stand.”

Dr. Nancy Kellogg, head of pediatrics at University of Texas Health Science Center and largely considered the state's foremost authority on child sexual abuse, examined the victims in the cases of both Navarijo and the San Antonio Four, testifying at their trials (Navarijo was convicted a year after the last of the San Antonio Four were sentenced). The Current last year spoke with experts who said the science, both then and now, doesn't support Kellogg's findings that victims in both cases were sexually abused. Kellogg declined to comment on the cases.

Navarijo's appeals lawyer largely sidestepped the questionable validity of Kellogg's findings in his case (that a forensic exam proved the girl had been sexually assaulted) and instead focused on the daughter's recantation. But a reading of the trial transcript shows Navarijo's conviction in large part hinged on Kellogg's testimony. The defense and prosecutors battled over whether Kellogg's findings confirmed that the girl had been sexually assaulted, and, as we reported last year, there's indication Kellogg's testimony carried enormous weight with the jurors as they struggled with the decision.

As juror Monica Moreno recalled last year, the physical evidence is what swayed the jury. “That just showed us the real damage that had been done to that poor little girl,” she told the Current.

Jeff Mulliner, a prosecutor on Navarijo's case who now works as a local criminal defense attorney, told the Current last year he doesn't give much weight to recantations, insisting there are many reasons a victim might reverse their story years after the crime. But Mulliner was most troubled by questions over Kellogg's court testimony that there was definitive evidence the girl was sexually assaulted. He even told the Current, “Certainly the defense community over time has come to form at least a general opinion that Nancy Kellogg is really an advocate as opposed to a scientist.”

The CCA will likely decide whether to overturn Navarijo's conviction sometime within the next 3 to 6 months, Valdez said. “Quite honestly, given the record, I can't imagine that they wouldn't,” he added. – Michael Barajas